New Delhi, April 6: The Supreme Court collegium is set to reject key government recommendations towards transparency in judges' appointment, months after the apex court quashed a law that sought to give the Centre a larger say in the process.
Two apex court judges have told The Telegraph that the government's latest suggestions, sent a week ago, are as damaging for judicial independence as the law set aside last October.
The collegium is a panel headed by the Chief Justice, with the four other senior-most judges as members, that has sole authority in appointing and transferring apex court and high court judges.
Some of the recommendations the collegium is likely to reject, the two judges said, are:
• Allowing the Centre the right to reject any judge on the ground of national security (the government can now merely seek a reconsideration);
• Giving the attorney-general and the state advocates-general a say in the appointments and transfers of judges;
• Elevating advocates directly to the top court, with three such judges in office at any given time (advocates now have to be appointed high court judges first);
• Sharing with the government any dissent note filed within the collegium.
"We are examining the suggestions but some of them seem to override the (October) judgment, which is not acceptable," an apex court judge said.
He and another judge said that no one who is a threat to national security can ever be elevated to the higher courts, especially since all would-be judges have to undergo Intelligence Bureau verification.
If such an unlikely situation ever occurs, the collegium would not insist on the judge's appointment, they said while dismissing the idea of giving the government a free hand to reject judges.
Nor can the attorney-general or state advocates-general - who are political appointees - have a say in judges' appointments and transfers without undermining judicial independence, they said.
"As for sharing dissent notes, there's never any dissent in our decisions. All decisions are taken unanimously by the judges in the collegium," one of the judges said.
Both rejected the recommendation to appoint advocates directly to the Supreme Court.
They, however, welcomed the idea of the collegium having its own secretariat for tasks like processing the candidates' applications and communicating with the Centre, which are now handled by the apex court registry.
The recommendations were drawn up by a ministers' group headed by foreign minister Sushma Swaraj.
On October 16, a five-judge Constitution bench had quashed a law that required judges to be appointed or transferred by a panel made up of three judges, the law minister and two eminent citizens. But the bench had agreed to hear suggestions from the government and other stakeholders on how the process could be made more transparent.
On December 16, the bench allowed the Centre to redraft the 18-year-old memorandum of procedure that guides judges' appointments, making it clear that the final say rested with the collegium. The Centre sent its suggestions last week.